Petition for Rulemaking -- Employee Protection
August 13, 1999
Secretary
United States Nuclear Regulatory Commission
Washington, DC 20555-0001
SUBJECT: SUBMITTAL OF PETITION FOR RULEMAKING—EMPLOYEE PROTECTION TRAINING
Dear Ms. Vietti-Cook:
Pursuant to §2.802 of Title 10 of the Code of Federal Regulations, I hereby submit the enclosed petition for rulemaking. This petition for rulemaking seeks to require NRC's licensees to provide specific training to management (first-line supervisors, managers, directors, and officers) regarding the federal regulations for employee protection. UCS feels that this rulemaking is required based on the NRC staff's position that they are unable to take enforcement actions against individuals who violate the employee protection regulations (i.e., 10 CFR 50.7) unless they can explicitly prove that these individuals knew that their actions violated these important regulations. UCS strongly feels that nuclear industry management should no longer be allowed to use "ignorance of the law" as an excuse for violating employee protection regulations. These illegal activities will only stop when the NRC holds wrong-doers personally accountable.
Sincerely,
David A. Lochbaum
Nuclear Safety Engineer
Union of Concerned Scientists
Enclosure: Petition for Rulemaking: Employee Protection Training
According to guidance posted on the NRC's website, the petitioner must, as a minimum:
Set forth a general solution to the problem or present the substance or text of any proposed regulation or amendment or specify the regulation that is to be revoked or amended;
State clearly and concisely your grounds for and interest in the action request; and
Include a statement in support of the petition that sets forth the specific issues involved; your views or arguments with respect to those issues; relevant technical, scientific, or other data involved that is reasonably available to you; and any other pertinent information necessary to support the action sought.
UCS will address these three criteria in the following sections.
Set forth a general solution to the problem or present the substance or text of any proposed regulation or amendment or specify the regulation that is to be revoked or amended
The regulations concerning deliberate misconduct in 10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150 should be revised to require licensees to provide training to management (first-line supervisors, managers, directors, and officers) about their obligations with respect to employee protection regulations in 10 CFR.
State clearly and concisely your grounds for and interest in the action request
On May 14, 1996, the NRC issued a policy statement applicable to employee protection regulations:
The Nuclear Regulatory Commission (NRC) is issuing this policy statement to set forth its expectation that licensees and other employers subject to NRC authority will establish and maintain safety-conscious environments in which employees feel free to raise safety concerns, both to their management and to the NRC, without fear of retaliation. The responsibility for maintaining such an environment rests with each NRC licensee, as well as with contractors, subcontractors and employees in the nuclear industry. This policy statement is applicable to NRC regulated activities of all NRC licensees and their contractors and subcontractors.
UCS has had a nuclear safety program for over two decades. We have in the past, and continue, to work with nuclear workers -- including employees of the Nuclear Regulatory Commission -- who raise safety concerns. The issues raised by nuclear workers have led to significant improvements in safety levels. For example, anonymous concerns received by UCS and forwarded to the State of Maine in December 1996 led to the identification of faults in the safety analyses for the Maine Yankee plant. Another whistle-blower's concerns received by UCS and presented to the NRC in January 1998 led to the discovery of serious defects in the ice condenser containment at the Donald C. Cook nuclear plant.
Title 10 to the Code of Federal Regulations contains regulations to protect such conscientious workers from discrimination. The record indicates that these regulations are frequently violated. Yet the individuals determined by the NRC staff as being responsible for these illegal activities are seldom held accountable.
In the mid 1980s, the NRC promulgated its Fitness-For-Duty rule (10 CFR Part 26). The regulations in 10 CFR Part 26 require nuclear workers to be free from impairment by drugs and alcohol. When it is determined that a worker has not complied with these regulations, enforcement actions can and will be taken against the individual. At least 17 of the 111 individual enforcement actions listed on Attachment 1 involved violation of the fitness-for-duty rule. The NRC did not take enforcement action against the licensees for these cases. It limited its sanctions to those individuals responsible for the violations.
The NRC treats violations of employee protection regulations differently. When it establishes that a violation of an employee protection regulation has occurred, such as in the May 20, 1999, enforcement action imposed against FirstEnergy (see Attachment 2), the NRC seldom takes enforcement action against the individuals responsible for the violations. Instead, the NRC limits its enforcement actions to the licensees.
UCS strongly believes that nuclear safety demands that nuclear workers not be impaired by drug and alcohol. When any worker violates the fitness-for-duty rule, that individual should be held accountable. UCS also strongly believes it is equally important that nuclear workers feel free to raise safety issues without fear of discrimination. When an worker violates the employee protection regulations, that individual should be held accountable.
The NRC is holding individuals who violate the fitness-for-duty rule accountable. The agency is not holding individuals who violate the employee protection regulations accountable. UCS is attempting to remedy this inequity by this proposed rulemaking. By requiring licensees to train management on their obligations under the employee protection regulations, the NRC staff would no longer be able to claim that individuals were unaware that their actions were illegal.
Include a statement in support of the petition that sets forth the specific issues involved; your views or arguments with respect to those issues; relevant technical, scientific, or other data involved that is reasonably available to you; and any other pertinent information necessary to support the action sought
10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150 each contain a regulation against deliberate misconduct by employees and/or contractors of NRC licensees. The following section from 10 CFR Part 50 reflects the scope and content of these deliberate misconduct regulations:
§50.5 Deliberate misconduct.
(a) Any licensee, applicant for a license, employee of a licensee or applicant; or any contractor (including a supplier or consultant), subcontractor, employee of a contractor or subcontractor of any licensee or applicant for a license, who knowingly provides to any licensee, applicant, contractor, or subcontractor, any components, equipment, materials, or other goods or services that relate to a licensee's or applicant's activities in this part, may not:
(1) Engage in deliberate misconduct that causes or would have caused, if not detected, a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the Commission; or
(2) Deliberately submit to the NRC, a licensee, an applicant, or a licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the NRC.
(b) A person who violates paragraph (a)(1) or (a)(2) of this section may be subject to enforcement action in accordance with the procedures in 10 CFR part 2, subpart B.
(c) For the purposes of paragraph (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:
(1) Would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation, of any license issued by the Commission; or
(2) Constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor.
The NRC took enforcement action against individuals 111 times between March 1996 and August 5, 1999 (source: http://www.nrc.gov/OE/rpr/ia.htm). Attachment 1 summarizes these individual enforcement actions. Only four (4) cases involved enforcement action taken by the NRC because the individual discriminated against nuclear workers raising safety concerns.
Federal regulations protect nuclear workers from being discriminated against for raising safety concerns. For example, §50.7, Employee protection, of 10 CFR Part 50 applies to workers at nuclear power plants:
(a) Discrimination by a Commission licensee, an applicant for a Commission license, or a contractor or subcontractor of a Commission licensee or applicant against an employee for engaging in certain protected activities is prohibited. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment. The protected activities are established in section 211 of the Energy Reorganization Act of 1974, as amended, and in general are related to the administration or enforcement of a requirement imposed under the Atomic Energy Act or the Energy Reorganization Act.
Equivalent regulations within 10 CFR apply to workers at non-power nuclear facilities.
The four (4) cases listed on Attachment 1 where NRC took enforcement action against individuals for their discriminatory actions against nuclear workers clearly demonstrates that the agency can take such actions. However, the evidence is just as clear that the agency seldom imposes enforcement actions against individuals even when it concludes that individuals were responsible for illegal discriminatory actions. Attachment 2 lists the eighteen (18) enforcement actions imposed against nuclear power plant owners between March 1996 and August 5, 1999, for discrimination against nuclear workers (source: http://www.nrc.gov/OE/rpr/rx.htm). Attachment 3 lists the five (5) enforcement actions imposed against non-nuclear power plant licensees between March 1996 and August 5, 1999, for discrimination against workers (source: http://www.nrc.gov/OE/rpr/mat.htm).
In 12 of the 18 enforcement actions against nuclear power plant owners, the NRC also imposed a civil penalty. The penalties ranged between $55,000 and $200,000 with the average being $104,417. In four of the five enforcement actions against non-nuclear plant licensees, the NRC also imposed a civil penalty. The penalties ranged between $4,400 and $10,000 with the average being $7,800.
Thus, from March 1996 to August 5, 1999, the NRC took 23 enforcement actions against licensees for discriminating against nuclear workers. In 16 of these 23 cases, the NRC staff also imposed a civil penalty. Before taking these enforcement actions and imposing these fines, the NRC staff's investigations determined who did what to whom. The NRC concluded that the "what" violated the employee protection regulations of 10 CFR.
However, despite identifying "who" was responsible for violating federal regulations in these 23 cases, the NRC staff only took enforcement action against individuals on four occasions. That they took actions against four individuals demonstrates that the NRC has the statutory authority to do so. In fact, the NRC revised 10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150 in January 1998 to expand its statutory authority:
The Nuclear Regulatory Commission (NRC) is amending its regulations to extend the Deliberate Misconduct Rule to six categories of persons: applicants for NRC licenses; applicants for, or holders of, certificates of compliance; applicants for, or holders of, early site permits, standard design certifications, or combined licenses for nuclear power plants; applicants for, or holders of, certificates of registration; applicants for, or holders of, quality assurance program approvals; and the employees, contractors, subcontractors and consultants of the above five categories of persons. This amendment would subject these categories of persons to enforcement action for deliberate misconduct. Deliberate misconduct may involve providing information that is known to be incomplete or inaccurate in some respect material to the NRC, or it may involve conduct that causes or would have caused, if not detected, a licensee, certificate holder, or applicant to be in violation of any of the Commission's requirements.
On May 25, 1999, UCS filed a petition with the NRC pursuant to §2.206 of 10 CFR:
The Union of Concerned Scientists (UCS) submits this petition pursuant to the 'other actions' provision of 10 CFR 2.206. Specifically, we request that the individual who was the Radiation Protection Manager at the Perry Nuclear Power Plant be banned by the NRC from participation in licensed activities at and for any nuclear power plant for a period of at least five (5) years.
According to NRC News Announcement RIII-99-31 dated May 24, 1999, the NRC proposed a $110,000 fine against First Energy Nuclear Operating Company for violation of the employee protection requirements of 10 CFR Part 50.7. The announcement stated that an NRC investigation found that the Radiation Protection Manager at the Perry Nuclear Power Plant discriminated against a supervisor in 1997 for testifying in a United States Department of Labor hearing involving possible discrimination against another plant worker. The NRC has banned individuals in the recent past for five (5) years for retaliation.
By letter dated June 23, 1999, the NRC denied the UCS petition:
As part of our internal deliberations during the enforcement process, consideration was given to taking enforcement action against the Manager. The NRC determined, however, that the Manager was not familiar with the requirements of 10 CFR 50.7. In your submittal, you argued that even if this is accurate, that ignorance of the law is no excuse. The NRC agrees that knowledge and understanding of the law are not necessary elements in determining whether a violation of 10 CFR 50.7 occurred. These elements are relevant, however, in determining whether enforcement action can be taken against the individual based on a violation of 10 CFR 50.5, the rule on deliberate misconduct. Therefore, no formal action was taken against the Manager. The NRC issued the Manager a letter stating that the Manager's actions contributed to the enforcement action against FirstEnergy. Additionally, the letter informed the Manager that involvement in a future discrimination violation could result in enforcement action against the Manager.
In this case, the NRC imposed a $110,000 civil penalty -- the maximum permitted by law -- against the owner of the Perry Nuclear Power Plant because its Radiation Protection Manager violated the employee protection requirements of 10 CFR 50.7. However, the NRC claimed it could take no action against the manager who violated 10 CFR 50.7 because that individual may not have known that his actions were illegal. In other words, ignorance of the law is indeed an excuse -- at least when it comes to violating regulations promulgated to protect nuclear workers from discrimination.
The NRC's decision regarding UCS's petition makes little sense. When they revised 10 CFR Parts 30, 32, 40, 50, 52, 60, 61, 70, 71, 72, 110, and 150 in January 1998, the NRC stated:
The objective of the rule is to explicitly put those persons encompassed by this modification of the Deliberate Misconduct Rule on notice that enforcement action may be taken against them for deliberate misconduct or deliberate submission of incomplete or inaccurate information, in relation to NRC licensed activities. Under Section 234 of the Atomic Energy Act, the Commission may impose civil penalties on any person who violates any rule, regulation, or order issued under any one of the enumerated provisions of the Act, or who commits a violation for which a license may be revoked. The enforcement actions that may be taken, including orders limiting activities of wrongdoers in the future and civil penalties, will serve as a deterrent to others throughout the industry. [emphasis added]
For some unfathomable reason, the NRC staff believes that people will be aware that the deliberate misconduct regulation was expanded to apply to them, but that these same people will be oblivious to all of the other regulations that define proper conduct.
Rather than debating whether the NRC staff can really excuse illegal activities of nuclear industry management based on their ignorance of federal regulations (which, of course, begs the question why NRC is not concerned about people running nuclear facilities who profess ignorance of federal safety regulations), UCS is opting for this proposed rule change to take away the ignorance excuse altogether.
For Attachments A, B and C, contact the author at dlochbaum@ucsusa.org.
